*1 Jerry McMEANS, Petitioner-Appellant,
Anthony BRIGANO, Warden, J.
Respondent-Appellee.
No. 98-4096. Appeals,
United States Court
Sixth Circuit.
Argued: June
Decided and Filed: Oct. *3 Wendy an order stepfather, alleg-
with her edly Wendy followed. also asserted that initial encounter after this McMeans forced her to have sexual intercourse with him fellatio on him perform or several times, money. more sometimes for McMe- having any ans denies had sexual relation- ship Wendy. with Gallagher (argued R. William point during period, Wendy At some briefed), Cincinnati, Ohio, for Petitioner- Self, father, informed her Donald Appellant. *4 alleged McMeans’s sexual misconduct. Todd R. (argued), W. Harris Stuart Wendy’s Donald contacted mother and she (briefed), Attorney Office of Marti allegedly problem assured him that Columbus, Ohio, General, Respondent- for persist. Wendy would not later informed Appellee. alleged that Donald McMeans’s misbehav- thereafter, continued ior soon Donald RYAN, SILER, CLAY, and Before: sought County the assistance of Franklin Judges. Circuit (FCCS). Services At about the Children RYAN, J., opinion delivered the of the time, Wendy same also informed her fifth J., CLAY, court, SILER, joined. in which grade alleged teacher of McMeans’s abuse. 687-89), separate delivered a (pp. J. Wendy’s reported Wendy’s allega- teacher concurring part dissenting in and opinion tions to FCCS.
in part. receiving reports, After these FCCS custody. At Wendy approxi- took into its OPINION time, his mately the same McMeans lost
RYAN,
Judge.
Circuit
job
from his
and
evicted
home
us is the
from the district
appeal
Before
Columbus,
He then moved with his
Ohio.
dismissing
the habeas
court’s order
adopted
the remainder of his
wife and
McMeans,
Jerry
prisoner
an Ohio
tion of
family to Wisconsin.
raping
stepdaughter.
convicted of
County grand jury
Franklin
After a
the district court
McMeans asserts that
rape,
six counts of
charged McMeans with
proeedural-
when it
that he had
erred
held
him in
eventually
authorities
located
Ohio
Clause,
ly defaulted on his Confrontation
procured
and
his return to face
Wisconsin
Brady,
juror
and
bias claims. He also
charges.
criminal
court erred when it
argues
district
“reasonably ap-
held that the Ohio court
dire
alleges
during
McMeans
that
voir
plied”
deciding
federal
law
two
apparent
prospective
it became
constitutionally adequate
counsel rendered
jurors
According
would be biased.
assistance.
will affirm.
We
McMeans,
juror Hunt was the mother of
juror
daughter had
Grey’s
victim and
I.
murdered. McMeans also asserts
been
1980s,
Grey
half
was friends with the “chief
During the latter
of the
wife, Twila,
McMeans claims
county prosecutor.”
lived with his
and
McMeans
objections to
previous marriage,
despite
personal
from a
her children
Jr.,
jurors,
Ac-
his trial counsel did not em-
Jerry, Misty, Wendy.
Donald
and
these
re-
challenges to
cording Wendy,
night
ploy
peremptory
one
in the sum-
unused
Grey. There is no record
Wendy’s intoxicated mother move Hunt and
mer of
assertions, howev-
support
to a
and
for McMeans’s
upstairs
summoned her
bedroom
er,
waived the
his trial counsel
ordered her to have sexual
intercourse
because
dire
right
proceedings
have voir
tran-
TIONS OF RAPE AGAINST OTH-
scribed.
ERS IN
APPEL-
VIOLATION OF
TRIAL,
LANT’S RIGHT TO A FAIR
trial, Wendy
At
testified that McMeans
AND TO DUE PROCESS OF LAW
raped
had
her several times and McMeans
AS GUARANTEED BY THE FIFTH
charges.
theory
denied those
AND FOURTEENTH
AMEND-
Wendy
McMeans’s defense was that
had
THE
MENTS TO
UNITED STATES
story
fabricated a
of sexual
abuse
order
I,
CONSTITUTION AND ARTICLE
gain physical
that her father would
custo-
SECTION 16 OF THE OHIO CON-
dy
testimony
of her. Aside from the
STITUTION.
McMeans,
Wendy and
several other wit-
[(3)]
Wendy
nesses testified
had informed
THE TRIAL COURT ERRED
them of
alleged
McMeans’s
misbehavior.
BY OVERRULING APPELLANT’S
MOTION TO DISMISS
[THE
only physical
presented
evidence
CHARGES AGAINST HIM WHICH
testimony
trial was the
of a doctor from
VAGUE],
WERE IMPERMISSIBLY
Wendy.
FCCS who had examined
That
[(4)]
Wendy
doctor testified that
had scarring
APPELLANT
DENIED
WAS
“irregularities”
hymen,
on her
which
EFFECTIVE
ASSISTANCE OF
*5
possibly indicated sexual activity.
COUNSEL IN
THE
VIOLATION OF
AND
SIXTH
FOURTEENTH
trial,
day
prosecu-
On the second
of
AMENDMENTS TO THE UNITED
gave
tion
trial judge portions
of re-
STATES
AND
CONSTITUTION
AR-
ports from FCCS for in camera review.
I,
TICLE
SECTION 10
THE
OF
reports
The
that Wendy
noted
had accused
OHIO CONSTITUTION.
sexually
two other men of
assaulting her
petitioner’s alleged
after the
abuse. After
submitting
After
those arguments, McMe-
file,
reviewing
judge
the trial
informed
brief,
se,
supplemental
ans filed a
pro
Wendy’s
McMeans’s counsel of
subsequent
asserted,
claims,
which
among other
that
accusations,
rape
but warned counsel that
prosecution
comply
failed to
with the
he
think
did not
such evidence was admis-
recognized by
duties
Supreme
Court in
following day,
sible under Ohio law. The
Brady Maryland,
when
attempted
McMeans’s counsel
(1963).
McMeans his conviction with the assistance of appointed counsel. This court rape finds the [Ohio] argued: Counsel shield law is applicable not to this case [(1)] THE TRIAL COURT ERRED since the concerning evidence whether ...
IN ADMITTING ... EVIDENCE Wendy or not fabricated other OF BAD PRIOR ACTS.... charges any does not address aspect of [(2)] THE TRIAL COURT ERRED her sexual activity. The evidence mere-
BY EXCLUDING ly EVIDENCE OF addresses or Wendy whether is a However, PROSECUTRIX’S PRIOR ACCUSA- credible witness. before a tri- jurisdiction to exercise its over his declined may admit evidence al court prior appeal. made accusations had victim others, trial court must rape against In November McMeans filed his prior accusations be satisfied court, argu in federal petition first habeas fact, were, in false.... failed to disclose ing prosecution case, is no evidence In this there exculpatory evidence and that his Confron Wendy’s prior accusa- the record that rights tation Clause had been violated. appellant false.... Had tions were petition pending, the Ohio While falsity evidence of the proffer wished to ruled in v. Murna Supreme Court State accusations, could appellant the prior han, 63 Ohio St.3d 584 N.E.2d an in-camera availed himself of (Ohio 1992), that an ineffective assistance not, did hearing.... appellant Since counsel claim could be raised that the trial court this court cannot find delayed in a motion for reconsideration of in declining per- its abused discretion McMe- ruling, a direct Given this mit counsel to cross-examine appellant’s petition ans moved to dismiss his without rape. accusations of Wendy prior on her prejudice might order that he file a assign- second Accordingly, appellant’s court Mumahan motion. The district of error is not well-taken. ment granted request. McMeans’s ineffective assis- Regarding McMeans then submitted his Mumahan claim, that “none of the court held tance coun- argued motion and that his asserts as ineffective things appellant to raise his grossly failing sel erred ineffec- in and of themselves demonstrates Clause, juror Brady, Confrontation the face of the record tiveness on Appeals bias claims. Ohio Court certainly, most do not demonstrate *6 ruled, first, that not to raise the decision would have been different.” the result likely “appellate claim was juror bias for filed a motion reconsidera- McMeans prepared the court strategy” and was decision, which the court of tion of that tactical, As to gainsay that decision. 6,1990. appeals denied on November argument appellate that coun- McMeans’s a se pro appeal then filed McMeans claim, presented Brady have a sel should Court, four claiming Supreme the Ohio that court stated: the claim that including errors in his trial trial court in this case reviewed The guaranteed by the Confrontation rights his file and dis- the childrens’ services [sic] The had been violated. Ohio Su- Clause appropriate information closed to hear the preme Court declined of this parties. It was as result both appeal pending, direct was While his appellant that be- inspection in camera pro filed a se motion for a new McMeans he now aware of the information came trial, assistance of trial arguing ineffective provided to properly was not asserts prosecution failed to counsel and that the him.... Brady obligations. After the fulfill its previously addressed This court has Appeals affirmed his convic- Ohio Court and prior rape reports of the the issue tion, rejected McMeans’s the trial court in that the trial court did not err found motion, un- holding that such motion was from the tri- excluding this evidence aside, argu- that his
timely timing result, cannot al.... As a this court rejected and had been considered ments was ineffec- appellate find that counsel level. appel- to raise the issues failing tive unsuccessfully appealed the McMeans assignments of error lant now raises as The Ohio Court of trial court’s decision. previous appeal. in his affirmed, ruling that McMeans’s Appeals that court ruled Finally, ap- untimely. McMeans then motion had, fact, Court, raised a counsel Supreme which pealed to the Ohio sistance, Confrontation Clause claim McMeans’s prosecution failed to turn appeal direct and that claim had been exculpatory over evidence in a timely man- rejected. appealed McMeans that deci- ner, and that the limitation on cross-exami- which, Supreme sion to the Ohio Court Wendy rights nation of Self guar- violated time, for third declined to hear his anteed the Confrontation Clause. case. petition. district court dismissed the August In McMeans filed his sec- That court ruled that proce- McMeans had petition. ond federal habeas The district durally Brady juror defaulted on petition court dismissed McMeans’s with- bias claims. The court then held that prejudice out after respondent argued McMeans failed to demonstrate ineffective required McMeans should be to seek counsel, assistance of appellate which could relief under postconviction proce- Ohio’s serve as “cause” to review those claims. respondent presented dure. When the its As to McMeans’s ineffective assistance argument dismissal, in support of it noted claim, trial counsel the district court ruled if McMeans chose to file an Ohio state court rejecting “[t]he decision motion, postconviction respondent would petitioner’s claim of ineffective assistance argue that procedurally McMeans had de- of trial counsel contrary was neither to nor faulted on his constitutional claims. in light clearly unreasonable established 1995, McMeans, se, In April acting pro federal Finally, law.” the district court requested postconviction relief from the ruled that “fairly pre- McMeans had not Ohio courts. Ohio Rev.Code Ann. sented” the Confrontation Clause issue to motion, § 2953.21. In that ar- McMeans the Ohio courts. gued that appointed trial pro- McMeans filed a appeal notice of and a constitutionally vided ineffective assistance petition for certificate of appealability. by failing to remove allegedly the two bi- This court certified his ineffective assis- jurors. ased court denied McMe- counsel, juror, tance of trial Brady, biased “[Tjrial motion, ans’s stating: counsel’s de- and Confrontation Clause claims. cision not to jurors exclude these could upon been based other favorable an- jurors swers that gave. these Even bar- II. ring this claim should have been *7 presented With each issue by peti appeal raised on judicata.” and is now res tioner, the question critical is whether he The Appeals Ohio Court of affirmed. The committed default in the Ohio Supreme Court of Ohio declined to hear courts on the particular argu claims or the appeal. McMeans’s case, presents. ments he If that is the 1996, McMeans, In March acting still federal jurisdiction, courts do not have ab se,
pro “delayed filed a motion for new sent a showing of “cause” and “prejudice” evidence,” newly based on discovered Carrier, to consider those Murray claims. arguing that Ohio him denied his Sixth 478, 485, 77 4 right Amendment by impar- be tried (1986). L.Ed.2d 397 jury. tial The trial court denied this mo- tion, ruling that presented the evidence by A. McMeans did not demonstrate the necessi- ty of a new trial. The Ohio Court of error, In his assignment first of Appeals affirmed. petitioner claims he was denied his consti- 21, 1997, January McMeans,
On
tutional right to
now
confront his accuser with
counsel,
represented by
her subsequent rape
filed his third fed-
accusations. The dis-
petition.
eral habeas
argued
juror
He
trict
court held that it could not consider
trial,
bias
him
denied
a fair
that trial and
merits
this claim
because the
provided
ineffective as-
tioner failed
“fairly present”
it to the
significant
actions this
deemed
the district
of the
court
We hold
courts.
Ohio
presentation”
analysis
“fair
in
did not err.
court
First,
argues
pre-
Franklin.
he
that he
do not have
The federal courts
by
his
claim
sented
Confrontation Clause
a claim a habeas
jurisdiction to consider
Constitution,
“due
citing
United States
“fairly presented”
that was
petition
process,”
right
and his
to a “fair trial.”
Rose,
Franklin v.
courts.
the state
Second, he notes that some of the state
Cir.1987).
(6th
A claim
F.2d
324-25
cited
his
brief con-
precedent
“fairly presented”
only
considered
may
be
analysis
tained
the Confrontation
the factual
if
asserted both
petitioner
Third,
pre-
Clause.
he maintains that the
state
for his claim to the
legal
basis
inquiry
subsequent rape
clusion of
into the
noted
Id. at 325. This court has
courts.
have,
itself,
accusations should
alerted
can take which
actions
defendant
four
possible
to a
Appeals
the Ohio Court
wheth
to the determination
significant
are
violation of
Confrontation Clause.
(1)
“fairly presented”:
claim has been
er a
employing
cases
con
upon
rebanee
federal
that,
finally
petitioner argues
The
even
(2)
analysis;
upon
reliance
state
stitutional
defaulted,
if
claim is
this
procedurally
employing federal
constitutional
cases
may
court
review the claim on
merits
(3)
claim in terms of
phrasing the
analysis;
the ineffective assistance
because
sufficiently
in terms
constitutional law or
the “cause” of the
appellate counsel was
allege
specific
a denial of a
particular to
opinions from
Citing unpublished
default.
(4) alleging facts
right; or
constitutional
dealing with examination into
this court
constitution
the mainstream of
web within
petitioner
prior
rape,
accusations
allegations
id. at 326. General
al law. See
that his
Clause
contends
Confrontation
a “fair trial” and
rights
denial of
of the
bang
claim was a “dead
winner” and his
“fairly
process”
present”
do not
“due
counsel, therefore, committed a
appointed
rights
specific
claims that
constitutional
failing
it.
gross error
assert
Coombe,
Petrucelli v.
were violated.
(2d Cir.1984).
F.2d
688-89
the state-
respondent argues
The
argues that
the district
opinion
ment from the Mumahan-motion
Court of
court erred because
Ohio
therefore,
best,
is,
ambiguous
counsel as-
Appeals
“appebate
stated that
of the
court should look to the substance
signed
issue as error
[the confrontation]
respondent
direct
that court ren-
appeal]”
direct
when
[on
petition-
appeal
contends that on direct
mo-
its decision on the Mumahan
dered
judge
that the trial
errone-
argued only
er
Nunnemaker,
Citing Ylst v.
tion.
shield law
ously applied
the Ohio
682 by opinion peti upon are of the the statement relied
We in “fairly present” opinion tioner did not his claim. tioner the Mumahan-motion is Consequently, a mistake. we hold that the appeal, petitioner In his direct focused has no entirely opinion Mumahan-motion effect on applicability on the Ohio’s petitioner our conclusion that the did not law. Ann. shield Ohio Rev.Code “fairly claim present” his to the Ohio any § pre 2907.02. He did not cite federal courts. only alleges cedent and his brief judge’s that the trial limitation on cross- alleged We hold next that examination denied him a “fair trial” and in failing error to raise recognized in process.” “due As this court petitioner’s Confrontation Clause claim
Franklin,
this is not sufficient to alert a
not constitute
does
“cause”
excuse the
asserting
court that an appellant
state
is
default.
In
petitioner’s procedural
order
specific
the violation of a
constitutional
to succeed on a claim of ineffective assis
right. While it is true that a few of the
counsel,
petitioner
tance of
by
on
petitioner
state cases cited
direct must show errors so serious that counsel
contain
to the
appeal
references
Confron
scarcely functioning
as counsel at all
Clause,
majority
tation
those cases
and that those errors undermine the relia
were concerned with Ohio evidence law. bility of
the defendant’s
convictions.
We do not think that a few brief refer
668,
Washington,
Strickland v.
466 U.S.
ences to the Confrontation Clause in isolat
(1984);
there were Brady pro claim in the se sentation of the Thus, a while Clause claim. Confrontation not the appellate brief does excuse done other- lawyer might have different procedural According tioner’s default. wise, appel- petitioner’s of the the decision Appeals the Ohio Court of respondent, the his not to assert Confrontation late counsel of dismiss- gave petitioner option the the and was not unreasonable claim Clause relying on ing his to conclude that he no for us affords basis brief, option in his presented the claims in the functioning as “counsel” “made the considered deci- petitioner the Jones, See Amendment sense. Sixth sion” not to exercise. 750-54, 3308. Conse- 103 S.Ct. at next that McMe- respondent argues The jurisdiction to re- are without quently, we only an ineffective assis presented ans petitioner’s argu- of the the view merits in his counsel claim tance of ments. Citing Picard Con Mumahan motion. 275-76, nor, B. (1971), respondent argues the L.Ed.2d 438 next that dis- argues petitioner claim that one constitutional asserting that it held he erred when trict court predicate factual with shares a common on his claim. Brady defaulted procedurally presentation another is not sufficient purported three petitioner presents procedural previous the latter to excuse procedural court’s de- in the district flaws default. First, holding. proposes he fault contends that Finally, respondent right to sub- there a constitutional exists its complies with as a state cases such ap- brief on direct pro mit a se if the exculpatory evidence duty to disclose theory petitioner’s It is the peal. a confidential file judge trial reviews alleged right constitutes of this denial exculpatory evi- any camera and discloses default. procedural his “cause” to excuse during the point therein some dence Second, he argues respondent, According to the trial. in his Brady claim implicitly presented just that at the judge trial did He when motion. asserts Mumahan therefore, petitioner’s appel- Appeals ruled on the Ohio Court reasonable choice late counsel made ineffective assistance of his substance claim on direct a “feckless” present not to claim, that court had appellate counsel Brady claim. analyze merits of his proceedings, criminal state Third, In contends that under the Due obligated is prosecution appellate coun- assistance of his ineffective the Fourteenth Amend Process Clause of suf- “prejudice” “cause” and sel establishes favorable that is disclose evidence ment to default. ficient to overcome *10 684 “ ... guilt
to the accused and ‘material
to
tutional claims
state courts would be
”
Franklin,
... punishment.’
or
United States v. meaningless. See
been disclosed to the
the result of
conten
proceeding
would have been different.”
tion that ineffective assistance of
default,
Id. at
105
S.Ct. 3375. Where
state
counsel excuses his
we
protects
confidentiality
pre-
of records
Appeals’
must defer to the Ohio Court of
pared by
protection agencies,
child
as does
question.
treatment of that
Pursuant
Ohio,
Supreme
the State of
Court has
2254(d)(1),
§
28
federal habeas re
U.S.C.
right
held that defense counsel has no
legal
view of
issues decided in state court
inspect
Pennsylvania
those records.
v.
deciding
is limited to
whether the state
Ritchie,
39, 59,
94
U.S.
S.Ct.
to,
contrary
court decision “was
or in
(1987). Instead,
L.Ed.2d 40
it is sufficient
of,
volved an unreasonable application
judge
inspect
for the trial
records
law,
clearly established Federal
as deter
any exculpatory
camera and disclose
evi-
by
Supreme
mined
Court
the United
dence contained therein.
Id. at
2254(d)(1).
§
States.”
28 U.S.C.
“[A]
989. Generally, exculpatory
S.Ct.
evidence
contrary
state-court decision
to [the
is
Su
“in
produced by
prosecution
must be
if
preme]
precedent
Court’s
the state court
Minsky,
time for effective use at trial.”
arrives at a conclusion
opposite to
were the
requirement
prosecution
that a ha
exculpatory
failed
disclose
Rather,
petitioner “fairly present”
beas
consti-
evidence.
maintains
*11
have ar
C.
appellate counsel should
that his
untimely. The
that disclosure was
gued
that,
petitioner
contrary
The
contends
to
Appeals
appellate
held that
Court
Ohio
court,
opinion
of the district
the federal
argu
not
raise this
counsel’s decision
jurisdiction
courts
habeas
to review
gross
an error so
as to
ment was not
juror
In support
bias claim.
of that
contention,
petitioner
to a Sixth Amendment violation.
reasserts the de-
amount
nial
alleged
of his
constitutional entitle-
in
particular
alleged
this
case
Because
ment to
a pro
appellate
submit
se
brief.
appellate
assistance of
counsel is
effective
argues again
He also
that the Ohio Court
“materially indistinguishable from
not
Appeals
juror
considered his
bias claim
Supreme
precedent,” we
relevant
Court
when it heard his Mumahan motion. For
that the Ohio
court’s deci
hold
discussed,
already
reject
reasons
we
those
“contrary
clearly
to ...
es
sion was not
arguments.
at —,
See id.
tablished Federal
law.”
alternative,
petitioner argues,
The
in the
omitted).
(emphasis
at 1519
We
that his appellate counsel’s failure to as-
opinion
are also of the
the Ohio
juror
appeal
sert
bias claim on direct
is
of the
stan
application
court’s
Strickland
yet
constitutionally
another instance of
in-
“objectively
not
unreasonable.”
dard was
adequate
representation,
allowing this
—,
at
at 1521. The
See id.
jurisdiction
court
to exercise
over his
judge
trial
disclosed the evidence of
Ohio
claim.
subsequent
accusations on the
Finally,
petitioner’s theory
it is the
day of trial after in camera review
second
respondent
judicially estopped
is
from
action
of the FCCS file. This
was essen
procedural default to
court.
arguing
Supreme
in
what the
tially
compliance with
According
petitioner,
when
re-
Court has held the United States Constitu
spondent
petitioner’s
moved to dismiss the
in
this.
requires
tion
cases such as
See
petition
second habeas
for failure to ex-
Ritchie,
59, 107
at
S.Ct. 989. The
remedies,
haust his state
respondent
petitioner does not direct our attention to
argued
petitioner
proce-
that the
had not
(and
any evidence in the record
we have
durally
juror
defaulted on his
bias claim.
none) indicating
found
that he did not have
that,
petitioner
contends
because the
“effectively.”
time to use this evidence
respondent
alleged argument
made this
Minsky,
See
963 F.2d
875. The Ohio
dismiss,
it
not
support its motion
should
that,
Appeals
noted
after receiv
Court
argue procedural
be allowed to
default
ing
reports,
information
the FCCS
now.
petitioner] could have availed himself
“[the
As to the
contention that the
had
hearing”
“[he]
in-camera
wished
ineffective
of his
coun-
assistance
proffer
falsity
evidence of the
of the
default,
procedural
sel excuses his
the re-
[subsequent]
petitioner,
accusations.” The
cor-
spondent argues that “the state courts
however, took no action to
to the
prove
rectly
held that
...
counsel was
judge
subsequent rape
accu
there
constitutionally adequate because
Thus, the petitioner’s
sations were false.
grounds
asserting
were
for not
reasonable
Brady claim has obvious weaknesses
claim” and this court should defer to
th[at]
therefore,
ap
cannot conclude that his
we
main-
ruling.
respondent
also
pellate counsel’s service fell below that
judicial
if
estoppel
tains
even
should
Amendment
which
Sixth
demands.
petitioner
de-
apply
the situation
Consequently,
fails to show
scribes,
present
did
default,
“cause” to excuse his
juror
bias claim his second habeas
holding
and we affirm the district court’s
Therefore, according
respon-
tion.
juris
dent,
that the federal
do not have
any misrepre-
courts
it could not have made
regarding
particular
claim.
diction to review the merits of this claim.
sentation
*12
Amendment,
of
“availab[ility]”
postconviction
a
as to the
Under
Sixth
relief,
by
Washington
of
could not
is entitled to be tried
the State
state defendant
See, e.g., Dennis v.
jury.
subsequently argue procedural
an
default
impartial
171-72,
States,
162,
339 U.S.
federal courts.
Id. at 1038.
United
(1950).
519,
could have
asserted
juror
if
prove
only
actual
bias
there was
petitioner argues
that he is entitled
an infer
support
some credible evidence
denied the
habeas relief because he was
bias. The
potential
ence of
of trial
effective assistance
counsel.
counsel, however, had no such
by
sole error of trial counsel asserted
cannot fault
Consequently,
evidence.
we
petitioner is counsel’s failure to exercise
his decision not to assert an unsubstantiat
peremptory challenges
unused
to remove
quarrel
claim or
with the
Court of
ed
Ohio
jurors. Accord-
allegedly
the two
biased
re
Appeals’
decision
ing
petitioner,
this inaction
coun-
constitutionally adequate assistance
ceived
perfor-
sel demonstrates that “counsel’s
Thus,
counsel.
way
objective
mance fell
the ...
below
“cause” to
adequate
fails to demonstrate
standard
reasonableness.” The
default
there
excuse
that,
jury
also maintains
because his
tioner
fore, we cannot review his claim.
members,
allegedly
had two
biased
judicial estoppel
The doctrine of
cannot
and
conviction
be deemed reliable
in
party
taking
position
forbids a
from
has, therefore,
“prejudice”
he
established
un
successfully
consistent with one
under the Strickland standard.
by that
equivocally
party
asserted
same
To establish a claim for ineffective
proceeding.
an earlier
Warda v. Commis
Revenue,
counsel,
sioner
Internal
15 F.3d
assistance of
a defendant must
(6th Cir.1994).
Rolfs,
performance
In Russell v.
show that his counsel’s
was
(9th Cir.1990),
constitutionally
F.2d 1033
the Ninth
deficient and that counsel’s
judicial
applied
performance
prejudicial.
the doctrine of
es
deficient
was
Circuit
Strickland,
it
toppel
Washington
to the State of
after
Although petitioner did raise a Petitioner claims prosecution’s claim of ineffective assistance trial coun failure to timely produce evidence of the sel on direct he did appeal, not refer to his victim’s prior rape allegations violated his trial counsel’s decision not to remove the Sixth Amendment right to confrontation. two allegedly jurors biased as an The majority instance concluded that Petitioner did He error. did not refer alleged to this not fairly present his Sixth Amendment error until he submitted subsequent mo *13 claim to the Ohio state courts and as a tions to time, the Ohio By courts. consequence, waived the claim for federal Ohio courts held that the issue of the habeas review. A prisoner state seeking ineffectiveness counsel ju was res federal habeas relief “fairly presents” the As with dicata. the rest of substance of each courts, claim to state as claims, we, therefore, may not review required, this by citing applicable provisions of argument petitioner unless the can Constitution, demon federal using decisions “cause” “prejudice” strate and to overcome analysis, constitutional or state decisions procedural default. See Murray, employing 477 constitutional analysis in simi- 485, 106 at U.S. S.Ct. 2639. lar fact patterns. See 28 U.S.C. 2254(b); § Bell, Carter v. 581, 218 F.3d petitioner, however, not pres- does (6th Cir.2000). 606-07 Because Petitioner any ent us with reason why we should not cited the Sixth Amendment in his state respect application judicata of res by court appeal, and because the Ohio Court the Ohio courts. After having thoroughly of Appeals understood that Petitioner was record, reviewed the we conclude that he asserting his Sixth right Amendment to cannot “prejudice” establish to excuse his confront a witness as evidenced procedural default. The against evidence language used in opinion, its I believe that both substantial for “fairly presented” Petitioner his confronta- the most part, We, therefore, credible. tion claim to the Ohio state courts. I fail to see how seating of two allegedly therefore believe the majority should jurors biased undermines the reliability of reached the merits of Petitioner’s Sixth the petitioner’s conviction. Consequently, Amendment claim. we jurisdiction have no to review the tioner’s argument. narrow Although the majority is in con correct
cluding that Petitioner procedurally de faulted claim, on his Brady a review of III. claim Petitioner’s is not so long foreclosed as he can “demonstrate cause reasons, For for de foregoing the order and fault and actual prejudice as a result of the opinion of the district court are AF- alleged violation of federal law.” Coleman FIRMED. 722,
v. Thompson, 501 U.S. 111 S.Ct. 2546, 115 (1991). L.Ed.2d 640 A petitioner CLAY, Judge, Circuit concurring part can generally demonstrate cause if he can dissenting part. and present a substantial reason to excuse the I agree with the majority’s Zent, conclusion default. See Rust v. 17 F.3d that Petitioner (6th procedurally Cir.1994). defaulted his Murray Carrier, In v. juror bias claim and did not demonstrate the Supreme Court stated that “the exis prejudice cause and proce- excuse the tence of procedural cause for default must However, dural default. I disagree with turn ordinarily on whether the prisoner the majority’s conclusion that can Petitioner objective show that some factor exter did not “fairly present” his Sixth nal to Amend- impeded defense ef counsel’s ment claim to courts, the Ohio state as comply well forts to with procedural the State’s as with the majority’s disposition of Peti- rule.” 486-89, Brady tioner’s claim. (1986). Thus, L.Ed.2d 397 inef- on direct Brady claim raise a can constitute of counsel assistance
fective ren thus counsel appellate Petitioner’s id. cause.1 See con of counsel assistance dered ineffective refusal of argues Petitioner See the default. to excuse stituting cause Brady violation raise a counsel appellate 1508, 1515 54 F.3d Reynolds, v. Banks in ineffective resulted appeal his direct on Cir.1995) (10th (holding thereby assistance Brady claim failed to raise counsel who de- for the constituting cause assistance ineffective rendered regarding choices Although tactical fault. Carrier, 477 counsel); see also properly left are appeal on issues raised 486-89, 106 2639. of coun- judgment professional the sound F.2d Perry, prong sel, prejudice actual Turning States see United standard, well (6th Cir.1990), the factu- it is upon based prejudice the cause case, and the lack failure prosecution’s al circumstances established *14 Petition- ma- against and overwhelming evidence that is favorable of disclose evidence of objective standard er, the a it was below violates defen- guilt issue of to the terial to counsel not Brady v. for process. reasonableness See to due right dant’s 1194, di- Petitioner’s Brady 83, 87, violation on a raise 83 S.Ct. Maryland, 373 U.S. Here, (1963). rect the record 215 10 L.Ed.2d of for a determination not allow does indicates, prior the two the record As actually prejudiced Petitioner was whether to light come rape of did not allegations Brady raise the failure to by his counsel’s vic- trial. The day of first until after the to is insufficient because the record claim raped by her had been alleged that she tim rape allega- prior whether the determine 1988 April in of and boyfriend girlfriend’s counsel did false. Defense tions were in of man June year old by thirty-eight a However, hearing. in camera request an untimely disclosure to the 1988. Due requested hearing been an camera had Petition- by government, the this evidence al- finding a the yielded it and had veracity of to determine er was unable two against allegations rape result, leged victim’s aAs allegations. the victim’s false, Brady viola- then were other men prior to allow the trial court refused de- Petitioner was because occurred tion impeach into evidence allegations that [could use of “evidence nied the under victim because credibility aof credibility impeach Law, used prior rape been] alle- Rape Ohio Shield States, witness[,]” v. United see Schledwitz at brought out trial not be gations could Cir.1999), (6th 1003, thus 1012 Rev. 169 F.3d See Ohio they were false. unless prejudice Petitioner. 2907.02(D). resulting in actual § Because Peti- Ann. Code to determine possible it is not Inasmuch as was aware of the appellate counsel tioner’s alle- prior rape veracity of the victim’s government untimely disclosure us, I record before would gations on repercussions resulting prejudicial and the court with instruc- the district remand to Petitioner, objectively it unreason- was hearing to evidentiary hold an tions to counsel not for Petitioner’s able grossly appellate counsel that his recently claim Supreme held when Court 1. The Brady to the failing claim upon to raise his ineffectiveness relies erred in proce court; appealed cause to excuse his decision as counsel claim he default, of counsel the ineffectiveness Appeals; applica dural filed an Ohio Court have been exhausted before claim must itself appeals appeal the court of leave to tion for comply with the in order to the state courts Court, Supreme to the Ohio but decision 478, Carrier, Murray v. commands Therefore, Carpenter application was denied. (1986). 2639, 397 91 L.Ed.2d 106 S.Ct. Petitioner exhausted has been satisfied U.S. Carpenter, 529 v. See Edwards seeking feder before court remedies his state 1591-92, — - —, L.Ed.2d 146 at —, 120 See habeas relief. al hand, (2000). pursuant to case In the S.Ct. at 1592. motion, presented he Murnahan Petitioner's prior rape allega- determine whether the so,
tions in fact false. If were Petitioner prejudiced by his counsel’s failure to claim, Brady
raise the violation thereby
providing a sufficient basis excuse his Coleman,
procedural default. See
U.S. at 2546. addition,
In if prior rape allegations false,
were found to have been I would find
Petitioner’s right Sixth Amendment to con-
front his accuser was violated but for this Collins, holding Boggs
Court’s recent (6th Cir.2000).
226 F.3d 735-40 In a this,
case such as physical where the evi-
dence is far compelling, from and the de- guilt
termination of or innocence turns
upon credibility of the victim and the
accused, it is all the more important that a right
defendant have the to confront his
accuser. reasons,
For foregoing I would con-
ditionally grant petition by the habeas or-
dering the Petitioner’s release unless the
State on remand evidentiary conducts an
hearing to determine whether prior
rape allegations actually were If false. false, allegations proven are Petition- application
er’s for the writ should be
granted and a new trial ordered. WASHINGTON,
Rufus Petitioner-
Appellant, HOFBAUER, Respondent-
Gerald
Appellee.
No. 98-2250. Appeals,
United States Court of
Sixth Circuit.
Argued: March
Decided and Filed: Oct.